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Florida Expungement and Sealing Law

Tagged under: Law Resources Florida Expeal
By Omid Ghaffari-Tabrizi on April 18, 2016.

Florida's State Flag.

Florida allows more charges to qualify for sealing and expunging than most states, but with a major catch. In Florida, if you ever had a conviction of any kind – including criminal traffic infractions like Driving While License Suspended or Reckless Driving – you can never seal or expunge any other record, whether it is related or not. That also means that the only charges that can ever be sealed or expunged are those that did not result in a conviction themselves. In order to help educate as many people as we can, the entire text of 943.0585 and 943-059 of the Florida Statutes are printed below. The text and commentary are both from April 18, 2016. Please make sure everything is still accurate.

A few key points to remember:

  • Florida will not allow you to seal or expunge a record if you have any convictions on your record.
  • Florida requires that you seal your record first and that you then go at least 10 years without any convictions before you can expunge your record.
  • Nothing in Florida law makes sealing or expunging your record a right - a court may deny your request at its sole discretion.
  • You need to obtain a Certificate of Eligibility before filing your petition to seal or expunge your record.
  • You can only seal or expunge records related to one arrest or criminal incident in your entire life.

While we do our absolute best to make sure that our qualification form is completely accurate, no one other than an attorney licensed in Florida will know for sure whether you qualify. They will review these same rules as well as case-law related to this statute to come to their decision.

943.0585 of the Florida Statutes - Court-ordered expunction of criminal history records.

This is the section that explains the provisions of this law that are applicable whether you are expunging your case. It is divided into 6 subsections with multiple sub-subsections. We break down each provision individually to make sure we don't miss anything.

943.0585, Florida Statutes

Court-ordered expunction of criminal history records. The courts of this state have jurisdiction over their own procedures, including the maintenance, expunction, and correction of judicial records containing criminal history information to the extent such procedures are not inconsistent with the conditions, responsibilities, and duties established by this section. Any court of competent jurisdiction may order a criminal justice agency to expunge the criminal history record of a minor or an adult who complies with the requirements of this section. The court shall not order a criminal justice agency to expunge a criminal history record until the person seeking to expunge a criminal history record has applied for and received a certificate of eligibility for expunction pursuant to subsection (2) or subsection (5). A criminal history record that relates to a violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, former s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, a violation enumerated in s. 907.041, or any violation specified as a predicate offense for registration as a sexual predator pursuant to s. 775.21, without regard to whether that offense alone is sufficient to require such registration, or for registration as a sexual offender pursuant to s. 943.0435, may not be expunged, without regard to whether adjudication was withheld, if the defendant was found guilty of or pled guilty or nolo contendere to the offense, or if the defendant, as a minor, was found to have committed, or pled guilty or nolo contendere to committing, the offense as a delinquent act. The court may only order expunction of a criminal history record pertaining to one arrest or one incident of alleged criminal activity, except as provided in this section. The court may, at its sole discretion, order the expunction of a criminal history record pertaining to more than one arrest if the additional arrests directly relate to the original arrest. If the court intends to order the expunction of records pertaining to such additional arrests, such intent must be specified in the order. A criminal justice agency may not expunge any record pertaining to such additional arrests if the order to expunge does not articulate the intention of the court to expunge a record pertaining to more than one arrest. This section does not prevent the court from ordering the expunction of only a portion of a criminal history record pertaining to one arrest or one incident of alleged criminal activity. Notwithstanding any law to the contrary, a criminal justice agency may comply with laws, court orders, and official requests of other jurisdictions relating to expunction, correction, or confidential handling of criminal history records or information derived therefrom. This section does not confer any right to the expunction of any criminal history record, and any request for expunction of a criminal history record may be denied at the sole discretion of the court.

Commentary on Introductory Language

This introductory section sets the stage for how Florida's expungement process and procedure works. It lays out the rule that the state courts have complete power over setting up their procedures for the maintenance, expunction, and correction of any records related to the criminal history that is being expunged. The only requirement is that they are not inconsistent with the requirements set out by this section.
The first requirement is that any court that has jurisdiction can order any criminal justice agency in Florida to expunge their records. Therefore, any records held by any department or agency will be subject to the court's ruling.
The second requirement is that the court must require that the petitioner obtain a certificate of eligibility pursuant to subsection (2) or subsection (5) before ordering any records expunged.
The third requirement is that the following charges are never ordered expunged, regardless of whether adjudication was withheld, the person was found guilty or pled guilty or nolo contendere:
  • 393.135 – Prohibited acts sexual misconduct
  • 394.4593 – Failure to report prohibited acts of sexual misconduct
  • 787.025 – Luring or enticing a child
  • Chapter 794 – Sexual battery
  • former 796.03 – Procuring a person under the age 18 for prostitution
  • 800.04 – Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age
  • 810.14 – Voyeurism
  • 817.034 – Violations of the Florida Communications Fraud Act
  • 825.1025 – Lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled person
  • 827.071 – Sexual performance by a child
  • Chapter 839 – Offenses by Public Officers and Employees
  • 847.0133 – Certain acts in connection with obscenity involving minors
  • 847.0135 – Computer pornography; prohibited computer usage; traveling to meet minor
  • 847.0145 – Selling or buying of minors
  • 893.135 – Drug trafficking and conspiracy to engage in trafficking charges
  • 916.1075 – Prohibited acts of sexual misconduct, failure to report prohibited acts of sexual misconduct
  • 907.041 – Violation of pretrial detention and release terms
  • 775.21 – Charges that serve as a predicate for registration under the Florida Sexual Predators Act
  • 943.0435 – Charges that require registration under the Florida Sexual Predators Act
The fourth requirement is that the court may only order the records related to one arrest or one incident expunged, unless at its discretion, it orders the expunction of multiple arrests and records related to the same set of charges. If the court decides to do that, it must state that intent in the order, or else the order to expunge those additional records will not be valid. In fact, agencies and departments in receipt of that order are legally not allowed to expunge the records without that statement of intent. Another important power held by the court is that they may expunge only a portion of records related to one arrest or incident.
The fifth requirement is actually one that is optional. Any criminal justice agency that receives a court order or official request from a court in a jurisdiction different than its own is not actually required to comply with the order, but it may comply if they desire.
The sixth requirement is actually a point being made. It states that this section does not actually give a person a right to have their record expunged and a court may, at its sole discretion, deny the request.

943.0585(1), Florida Statutes

Petition to Expunge a Criminal History Record. Each petition to a court to expunge a criminal history record is complete only when accompanied by:
(a) A valid certificate of eligibility for expunction issued by the department pursuant to subsection (2).
(b) The petitioner's sworn statement attesting that the petitioner:
1. Has never, prior to the date on which the petition is filed, been adjudicated guilty of a criminal offense or comparable ordinance violation, or been adjudicated delinquent for committing any felony or a misdemeanor specified in s. 943.051(3)(b).
2. Has not been adjudicated guilty of, or adjudicated delinquent for committing, any of the acts stemming from the arrest or alleged criminal activity to which the petition pertains.
3. Has never secured a prior sealing or expunction of a criminal history record under this section, s. 943.059, former s. 893.14, former s. 901.33, or former s. 943.058, unless expunction is sought of a criminal history record previously sealed for 10 years pursuant to paragraph (2)(h) and the record is otherwise eligible for expunction.
4. Is eligible for such an expunction to the best of his or her knowledge or belief and does not have any other petition to expunge or any petition to seal pending before any court.
Any person who knowingly provides false information on such sworn statement to the court commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Commentary on Sub-subsection 1

This is the section that outlines what every petition to expunge a criminal record in Florida will require. First, a valid certificate of eligibility from the FDLE is required. Second, the petition must include a few very specific statements. A person who wants to expunge their record must state the following, under oath, through a sworn affidavit:
  1. They have never been found guilty of any criminal offense, as specified in 943.051(3)(b).
  2. They have never been found guilty of committing any of the acts that arose out of the arrest or incident related to the petition.
  3. They have never previously expunged a record or sealed any record other than the one they want to expunge. Also, it has been at least 10 years since the record related to the expungement petition were sealed.
  4. To the best of their knowledge, there is no other petition currently outstanding.
  5. If any of these statements are made but are found to be false, the person who made those false statements is subject to be charged with third-degree felony charges.

    943.0585(2), Florida Statutes

    Certificate of Eligibility for Expunction. Prior to petitioning the court to expunge a criminal history record, a person seeking to expunge a criminal history record shall apply to the department for a certificate of eligibility for expunction. The department shall, by rule adopted pursuant to chapter 120, establish procedures pertaining to the application for and issuance of certificates of eligibility for expunction. A certificate of eligibility for expunction is valid for 12 months after the date stamped on the certificate when issued by the department. After that time, the petitioner must reapply to the department for a new certificate of eligibility. Eligibility for a renewed certification of eligibility must be based on the status of the applicant and the law in effect at the time of the renewal application. The department shall issue a certificate of eligibility for expunction to a person who is the subject of a criminal history record if that person:
    (a) Has obtained, and submitted to the department, a written, certified statement from the appropriate state attorney or statewide prosecutor which indicates:
    1. That an indictment, information, or other charging document was not filed or issued in the case.
    2. That an indictment, information, or other charging document, if filed or issued in the case, was dismissed or nolle prosequi by the state attorney or statewide prosecutor, or was dismissed by a court of competent jurisdiction, and that none of the charges related to the arrest or alleged criminal activity to which the petition to expunge pertains resulted in a trial, without regard to whether the outcome of the trial was other than an adjudication of guilt.
    3. That the criminal history record does not relate to a violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, former s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, a violation enumerated in s. 907.041, or any violation specified as a predicate offense for registration as a sexual predator pursuant to s. 775.21, without regard to whether that offense alone is sufficient to require such registration, or for registration as a sexual offender pursuant to s. 943.0435, where the defendant was found guilty of, or pled guilty or nolo contendere to any such offense, or that the defendant, as a minor, was found to have committed, or pled guilty or nolo contendere to committing, such an offense as a delinquent act, without regard to whether adjudication was withheld.
    (b) Remits a $75 processing fee to the department for placement in the Department of Law Enforcement Operating Trust Fund, unless such fee is waived by the executive director.
    (c) Has submitted to the department a certified copy of the disposition of the charge to which the petition to expunge pertains.
    (d) Has never, prior to the date on which the application for a certificate of eligibility is filed, been adjudicated guilty of a criminal offense or comparable ordinance violation, or been adjudicated delinquent for committing any felony or a misdemeanor specified in s. 943.051(3)(b).
    (e) Has not been adjudicated guilty of, or adjudicated delinquent for committing, any of the acts stemming from the arrest or alleged criminal activity to which the petition to expunge pertains.
    (f) Has never secured a prior sealing or expunction of a criminal history record under this section, s. 943.059, former s. 893.14, former s. 901.33, or former s. 943.058, unless expunction is sought of a criminal history record previously sealed for 10 years pursuant to paragraph (h) and the record is otherwise eligible for expunction.
    (g) Is no longer under court supervision applicable to the disposition of the arrest or alleged criminal activity to which the petition to expunge pertains.
    (h) Has previously obtained a court order sealing the record under this section, former s. 893.14, former s. 901.33, or former s. 943.058 for a minimum of 10 years because adjudication was withheld or because all charges related to the arrest or alleged criminal activity to which the petition to expunge pertains were not dismissed prior to trial, without regard to whether the outcome of the trial was other than an adjudication of guilt. The requirement for the record to have previously been sealed for a minimum of 10 years does not apply when a plea was not entered or all charges related to the arrest or alleged criminal activity to which the petition to expunge pertains were dismissed prior to trial.

    Commentary on Sub-subsection 2

    This is the section that spells out what is required to obtain a certificate of eligibility. As the first section dictated, a certificate of eligibility is required before any petition to expunge a record is considered. The certificate of eligibility is currently obtained from the FDLE, but the legislature could change that at a later date.
    The FDLE is tasked with setting up their own procedures for people to follow in order to apply and be issued a certificate of eligibility for expunction. Every certificate is valid for 12 months from the date stamped by the FDLE once issued. If the certificate expires, a new one has to be applied for and obtained. The law in effect at the time of the new application will apply, not the one that was in effect at the time the expired certificate was issued. A certificate of eligibility to expunge a record is issued if the outlined requirements are met.
    First, a person needs to obtain a written and certified statement from the prosecutor that was in charge of the case. The statement should indicate whether an indictment, information, or other charging document was filed or issued. It should also indicate that if the indictment, information, or other charging document was actually filed or issued, whether it was dismissed or nolle prosequi by the prosecutor or dismissed by the court. It should also indicate that none of the charges resulted in a trial, regardless of the outcome of that trial. Finally, it should state that it is not a charge related to any of the statutes listed as disqualifying charges.
    Second, a person needs to send a $75 processing fee, unless the executive director of the FDLE waives the fee.
    Third, a certified copy of the disposition of the charge that the person wants to expunge should be included with the application.
    Fourth, a person needs to be able to prove that they have never been found guilty of any criminal offense or comparable ordinance violation. They also need to be able to prove that they have never been adjudicated delinquent for committing any felony or misdemeanor related to criminal record management.
    Fifth, a person needs to state under oath that they were not adjudicated guilty of the charges they want to expunge.
    Sixth, they need to state they never had a prior sealing or expunging except for a sealing of the case they want expunged. The charge that a person wants expunged should also have been sealed for at least 10 years.
    Seventh, the person cannot be under any sort of court supervision.
    Eighth, if a charge was adjudication withheld or disposed of in any way other than a conviction after trial, proof of having obtained a sealed record 10 years prior to filing for the expungement needs to be included with the application. If the charge was sealed without a plea and were dismissed prior to trial, this requirement does not apply.

    943.0585(3), Florida Statutes

    Processing of a Petition or Order to Expunge.
    (a) In judicial proceedings under this section, a copy of the completed petition to expunge shall be served upon the appropriate state attorney or the statewide prosecutor and upon the arresting agency; however, it is not necessary to make any agency other than the state a party. The appropriate state attorney or the statewide prosecutor and the arresting agency may respond to the court regarding the completed petition to expunge.
    (b) If relief is granted by the court, the clerk of the court shall certify copies of the order to the appropriate state attorney or the statewide prosecutor and the arresting agency. The arresting agency is responsible for forwarding the order to any other agency to which the arresting agency disseminated the criminal history record information to which the order pertains. The department shall forward the order to expunge to the Federal Bureau of Investigation. The clerk of the court shall certify a copy of the order to any other agency which the records of the court reflect has received the criminal history record from the court.
    (c) For an order to expunge entered by a court prior to July 1, 1992, the department shall notify the appropriate state attorney or statewide prosecutor of an order to expunge which is contrary to law because the person who is the subject of the record has previously been convicted of a crime or comparable ordinance violation or has had a prior criminal history record sealed or expunged. Upon receipt of such notice, the appropriate state attorney or statewide prosecutor shall take action, within 60 days, to correct the record and petition the court to void the order to expunge. The department shall seal the record until such time as the order is voided by the court.
    (d) On or after July 1, 1992, the department or any other criminal justice agency is not required to act on an order to expunge entered by a court when such order does not comply with the requirements of this section. Upon receipt of such an order, the department must notify the issuing court, the appropriate state attorney or statewide prosecutor, the petitioner or the petitioner's attorney, and the arresting agency of the reason for noncompliance. The appropriate state attorney or statewide prosecutor shall take action within 60 days to correct the record and petition the court to void the order. No cause of action, including contempt of court, shall arise against any criminal justice agency for failure to comply with an order to expunge when the petitioner for such order failed to obtain the certificate of eligibility as required by this section or such order does not otherwise comply with the requirements of this section.

    Commentary on Sub-subsection 3

    This section outlines the procedure to process a petition or order to expunge a record. When the process is started, a copy of the completed petition will be served on the prosecutor in the county where the case was filed as well as the arresting agency. If other agencies were involved, such as a case where a person is arrested in one county and extradited to another, all those agencies will be served as well. However, it is not necessary to list anyone as an opposing party other than the state. If a prosecutor or arresting agency wants to, they can file a response to the petition.
    In the event a court orders a record expunged, it shall send certified copies of the order to the prosecutor and arresting agency. The arresting agency is responsible to send it to any other arresting agency involved. The court will also send a certified copy to the FBI and any other agency or department that has records from the court.
    For any orders entered before July 1, 1992, the department is responsible to notify the prosecutor of an order to expunge that is contrary to the law because the person was previously convicted or had a prior record sealed or expunged. Once the prosecutor receives that information, the prosecutor is responsible to take action within 60 days to fix that record and void the order.
    For any orders entered on or after July 1, 1992, the departments or agencies that receive an order to expunge that does not comply with the requirements of this section can simply ignore the order. They must, however, notify the prosecutor, the petitioner or petitioner's attorney, and the arresting agency the reason for the non-compliance. The prosecutor of the case should then take action within 60 days in order to correct the record and void the order. Any agency or department that fails to act on an order to expunge when the petitioner failed to obtain a certificate of eligibility cannot be held liable for taking such an action.

    943.0585(4), Florida Statutes

    Effect of Criminal History Record Expunction. Any criminal history record of a minor or an adult which is ordered expunged by a court of competent jurisdiction pursuant to this section must be physically destroyed or obliterated by any criminal justice agency having custody of such record; except that any criminal history record in the custody of the department must be retained in all cases. A criminal history record ordered expunged that is retained by the department is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and not available to any person or entity except upon order of a court of competent jurisdiction. A criminal justice agency may retain a notation indicating compliance with an order to expunge.
    (a) The person who is the subject of a criminal history record that is expunged under this section or under other provisions of law, including former s. 893.14, former s. 901.33, and former s. 943.058, may lawfully deny or fail to acknowledge the arrests covered by the expunged record, except when the subject of the record:
    1. Is a candidate for employment with a criminal justice agency;
    2. Is a defendant in a criminal prosecution;
    3. Concurrently or subsequently petitions for relief under this section, s. 943.0583, or s. 943.059;
    4. Is a candidate for admission to The Florida Bar;
    5. Is seeking to be employed or licensed by or to contract with the Department of Children and Families, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration, the Agency for Persons with Disabilities, the Department of Health, the Department of Elderly Affairs, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the disabled, or the elderly;
    6. Is seeking to be employed or licensed by the Department of Education, any district school board, any university laboratory school, any charter school, any private or parochial school, or any local governmental entity that licenses child care facilities;
    7. Is seeking to be licensed by the Division of Insurance Agent and Agency Services within the Department of Financial Services; or
    8. Is seeking to be appointed as a guardian pursuant to s. 744.3125.
    (b) Subject to the exceptions in paragraph (a), a person who has been granted an expunction under this section, former s. 893.14, former s. 901.33, or former s. 943.058 may not be held under any provision of law of this state to commit perjury or to be otherwise liable for giving a false statement by reason of such person's failure to recite or acknowledge an expunged criminal history record.
    (c) Information relating to the existence of an expunged criminal history record which is provided in accordance with paragraph (a) is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution, except that the department shall disclose the existence of a criminal history record ordered expunged to the entities set forth in subparagraphs (a)1., 4., 5., 6., 7., and 8. for their respective licensing, access authorization, and employment purposes, and to criminal justice agencies for their respective criminal justice purposes. It is unlawful for any employee of an entity set forth in subparagraph (a)1., subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., subparagraph (a)7., or subparagraph (a)8. to disclose information relating to the existence of an expunged criminal history record of a person seeking employment, access authorization, or licensure with such entity or contractor, except to the person to whom the criminal history record relates or to persons having direct responsibility for employment, access authorization, or licensure decisions. Any person who violates this paragraph commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

    Commentary on Sub-subsection 4

    This section outlines what is supposed to happen when someone successfully petitions to expunge their record and receives an order granting the expunction. Any records must be physically destroyed or obliterated, except for the record retained by the FDLE. The documents retained by the FDLE will be confidential and exempt from disclosure laws. They will not be available to anyone except for those with a court order. Any agency that expunges a record can keep a notation stating that they have complied, but nothing more.
    Once a person has had their record expunged, they can legally deny having ever been arrested, unless they are a candidate for employment with a criminal justice agency; a defendant in a criminal prosecution; petitioning to seal or expunge a future record; applying for admission to the Florida Bar; seeking to be employed or licensed to work with the Department of Children and Families, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration, the Agency for Persons with Disabilities, the Department of Health, the Department of Elderly Affairs, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the disabled, or the elderly; seeking to be employed or licensed by the Department of Education or any school; seeking to be licensed by the Division of Insurance Agent and Agency Services within the Department of Financial Services; or attempting to become a guardian in a domestic relationship. Except for those cases listed above, a person cannot be held liable for perjury or any other form of giving a false statement when they deny an arrest.
    The records retained by the Department after a record is expunged will remain confidential without a court order. The only thing the FDLE is required to say to the entities listed or to someone with a court order is simply that there was an expunged record. A violation of this provision will result in a misdemeanor.

    943.0585(5), Florida Statutes

    Exception for Lawful Self-Defense. Notwithstanding the eligibility requirements prescribed in paragraph (1)(b) and subsection (2), the department shall issue a certificate of eligibility for expunction under this subsection to a person who is the subject of a criminal history record if that person:
    (a) Has obtained, and submitted to the department, on a form provided by the department, a written, certified statement from the appropriate state attorney or statewide prosecutor which states whether an information, indictment, or other charging document was not filed or was dismissed by the state attorney, or dismissed by the court, because it was found that the person acted in lawful self-defense pursuant to the provisions related to justifiable use of force in chapter 776.
    (b) Each petition to a court to expunge a criminal history record pursuant to this subsection is complete only when accompanied by:
    1. A valid certificate of eligibility for expunction issued by the department pursuant to this subsection.
    2. The petitioner's sworn statement attesting that the petitioner is eligible for such an expunction to the best of his or her knowledge or belief.
    Any person who knowingly provides false information on such sworn statement to the court commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
    (c) This subsection does not confer any right to the expunction of a criminal history record, and any request for expunction of a criminal history record may be denied at the discretion of the court.
    (d) Subsections (3) and (4) shall apply to expunction ordered under this subsection.
    (e) The department shall, by rule adopted pursuant to chapter 120, establish procedures pertaining to the application for and issuance of certificates of eligibility for expunction under this subsection.

    Commentary on Sub-subsection 5

    This is the subsection that sets forth a lawful self-defense exception, allowing for immediate expunction. To get a record expunged through this exception, a person has to do five things. First, they have to obtain a written and certified statement from the appropriate state attorney or prosecutor which states whether or not an information, indictment, or charging document was filed or was dismissed because it was found that the person acted in self-defense in accordance with the justifiable use of force defined in chapter 776.
    A person who qualifies must file a petition to expunge their record that includes a valid certificate of eligibility, issued pursuant to this section, and a sworn statement by the person that they are eligible to have their record expunged to the best of their knowledge. A false statement will be a third degree felony.
    Nothing in this subsection gives the person the right to have their record expunged and a court may still deny the petition. Everything else in subsections 3 and 4 of this section will apply to a petition to expunge under this exclusion.

    943.0585(6), Florida Statutes

    Statutory references. Any reference to any other chapter, section, or subdivision of the Florida Statutes in this section constitutes a general reference under the doctrine of incorporation by reference.

    Commentary on Sub-subsection 6

    The statutes referenced by this section are done under the doctrine of incorporation by reference, so just mentioning them is enough to make it as if the entire text is included in this section.

    History

    Legislative history. s. 3, ch. 92-73; s. 43, ch. 93-39; s. 1, ch. 94-127; s. 19, ch. 94-154; s. 95, ch. 94-209; s. 140, ch. 95-418; s. 3, ch. 95-427; s. 52, ch. 96-169; s. 7, ch. 96-402; s. 443, ch. 96-406; s. 1847, ch. 97-102; s. 57, ch. 98-280; s. 115, ch. 99-3; s. 10, ch. 99-188; s. 4, ch. 99-300; s. 16, ch. 99-304; s. 3, ch. 2000-246; s. 27, ch. 2000-320; s. 115, ch. 2000-349; s. 4, ch. 2001-127; s. 1, ch. 2002-212; ss. 8, 97, ch. 2004-267; s. 1, ch. 2004-295; s. 22, ch. 2005-128; s. 118, ch. 2006-120; s. 10, ch. 2006-176; s. 27, ch. 2006-195; s. 109, ch. 2006-197; s. 5, ch. 2008-249; s. 8, ch. 2009-171; s. 7, ch. 2010-31; s. 17, ch. 2012-73; s. 18, ch. 2012-215; s. 4, ch. 2013-98; s. 25, ch. 2013-116; s. 169, ch. 2014-17; s. 35, ch. 2014-123; s. 6, ch. 2014-124; s. 27, ch. 2014-160; s. 11, ch. 2014-195.

    943.059 of the Florida Statutes - Court-ordered sealing of criminal history records.

    943.059, Florida Statutes

    Court-ordered sealing of criminal history records. The courts of this state shall continue to have jurisdiction over their own procedures, including the maintenance, sealing, and correction of judicial records containing criminal history information to the extent such procedures are not inconsistent with the conditions, responsibilities, and duties established by this section. Any court of competent jurisdiction may order a criminal justice agency to seal the criminal history record of a minor or an adult who complies with the requirements of this section. The court shall not order a criminal justice agency to seal a criminal history record until the person seeking to seal a criminal history record has applied for and received a certificate of eligibility for sealing pursuant to subsection (2). A criminal history record that relates to a violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, former s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, a violation enumerated in s. 907.041, or any violation specified as a predicate offense for registration as a sexual predator pursuant to s. 775.21, without regard to whether that offense alone is sufficient to require such registration, or for registration as a sexual offender pursuant to s. 943.0435, may not be sealed, without regard to whether adjudication was withheld, if the defendant was found guilty of or pled guilty or nolo contendere to the offense, or if the defendant, as a minor, was found to have committed or pled guilty or nolo contendere to committing the offense as a delinquent act. The court may only order sealing of a criminal history record pertaining to one arrest or one incident of alleged criminal activity, except as provided in this section. The court may, at its sole discretion, order the sealing of a criminal history record pertaining to more than one arrest if the additional arrests directly relate to the original arrest. If the court intends to order the sealing of records pertaining to such additional arrests, such intent must be specified in the order. A criminal justice agency may not seal any record pertaining to such additional arrests if the order to seal does not articulate the intention of the court to seal records pertaining to more than one arrest. This section does not prevent the court from ordering the sealing of only a portion of a criminal history record pertaining to one arrest or one incident of alleged criminal activity. Notwithstanding any law to the contrary, a criminal justice agency may comply with laws, court orders, and official requests of other jurisdictions relating to sealing, correction, or confidential handling of criminal history records or information derived therefrom. This section does not confer any right to the sealing of any criminal history record, and any request for sealing a criminal history record may be denied at the sole discretion of the court..

    Commentary on Introductory Language.

    This introductory section sets the stage for how Florida's sealing process and procedure works. It lays out the rule that the state courts have complete power over setting up their procedures for the maintenance, sealing, and correction of any records related to the criminal history that is being sealed. The only requirement is that they are not inconsistent with the requirements set out by this section.
    The first requirement is that any court that has jurisdiction can order any criminal justice agency in Florida to seal their records. Therefore, any records held by any department or agency will be subject to the court's ruling.
    The second requirement is that the court must require that the petitioner obtain a certificate of eligibility pursuant to subsection (2) before ordering any records sealed.
    The third requirement is that the following charges are never ordered sealed, regardless of whether adjudication was withheld, the person was found guilty or pled guilty or nolo contendere:
    • 393.135 – Prohibited acts sexual misconduct
    • 394.4593 – Failure to report prohibited acts of sexual misconduct
    • 787.025 – Luring or enticing a child
    • Chapter 794 – Sexual battery
    • former 796.03 – Procuring a person under the age 18 for prostitution
    • 800.04 – Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age
    • 810.14 – Voyeurism
    • 817.034 – Violations of the Florida Communications Fraud Act
    • 825.1025 – Lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled person
    • 827.071 – Sexual performance by a child
    • Chapter 839 – Offenses by Public Officers and Employees
    • 847.0133 – Certain acts in connection with obscenity involving minors
    • 847.0135 – Computer pornography; prohibited computer usage; traveling to meet minor
    • 847.0145 – Selling or buying of minors
    • 893.135 – Drug trafficking and conspiracy to engage in trafficking charges
    • 916.1075 – Prohibited acts of sexual misconduct, failure to report prohibited acts of sexual misconduct
    • 907.041 – Violation of pretrial detention and release terms
    • 775.21 – Charges that serve as a predicate for registration under the Florida Sexual Predators Act
    • 943.0435 – Charges that require registration under the Florida Sexual Predators Act
    The fourth requirement is that the court may only order the records related to one arrest or one incident sealed, unless at its discretion, it orders the expunction of multiple arrests and records related to the same set of charges. If the court decides to do that, it must state that intent in the order, or else the order to seal those additional records will not be valid. In fact, agencies and departments in receipt of that order are legally not allowed to seal the records without that statement of intent. Another important power held by the court is that they may seal only a portion of records related to one arrest or incident.
    The fifth requirement is actually one that is optional. Any criminal justice agency that receives a court order or official request from a court in a jurisdiction different than its own is not actually required to comply with the order, but it may comply if they desire.
    The sixth requirement is actually a point being made. It states that this section does not actually give a person a right to have their record sealed and a court may, at its sole discretion, deny the request.

    943.059(1), Florida Statutes

    Petition to Seal a Criminal History Record. Each petition to a court to seal a criminal history record is complete only when accompanied by:
    (a) A valid certificate of eligibility for sealing issued by the department pursuant to subsection (2).
    (b) The petitioner’s sworn statement attesting that the petitioner:
    1. Has never, prior to the date on which the petition is filed, been adjudicated guilty of a criminal offense or comparable ordinance violation, or been adjudicated delinquent for committing any felony or a misdemeanor specified in s. 943.051(3)(b).
    2. Has not been adjudicated guilty of or adjudicated delinquent for committing any of the acts stemming from the arrest or alleged criminal activity to which the petition to seal pertains.
    3. Has never secured a prior sealing or expunction of a criminal history record under this section, s. 943.0585, former s. 893.14, former s. 901.33, or former s. 943.058.
    4. Is eligible for such a sealing to the best of his or her knowledge or belief and does not have any other petition to seal or any petition to expunge pending before any court.
    Any person who knowingly provides false information on such sworn statement to the court commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

    Commentary on Sub-subsection 1

    This is the section that outlines what every petition to seal a criminal record in Florida will require. First, a valid certificate of eligibility from the FDLE is required. Second, the petition must include a few very specific statements. A person who wants to seal their record must state the following, under oath, through a sworn affidavit:
    1. They have never been found guilty of any criminal offense, as specified in 943.051(3)(b).
    2. They have never been found guilty of committing any of the acts that arose out of the arrest or incident related to the petition.
    3. They have never previously expunged a record or sealed any record other than the one they want to seal. Also, it has been at least 10 years since the record related to the expungement petition were sealed.
    4. To the best of their knowledge, there is no other petition currently outstanding.
    5. If any of these statements are made but are found to be false, the person who made those false statements is subject to be charged with third-degree felony charges.

      943.059(2), Florida Statutes

      Certificate of Eligibility for Sealing. Prior to petitioning the court to seal a criminal history record, a person seeking to seal a criminal history record shall apply to the department for a certificate of eligibility for sealing. The department shall, by rule adopted pursuant to chapter 120, establish procedures pertaining to the application for and issuance of certificates of eligibility for sealing. A certificate of eligibility for sealing is valid for 12 months after the date stamped on the certificate when issued by the department. After that time, the petitioner must reapply to the department for a new certificate of eligibility. Eligibility for a renewed certification of eligibility must be based on the status of the applicant and the law in effect at the time of the renewal application. The department shall issue a certificate of eligibility for sealing to a person who is the subject of a criminal history record provided that such person:
      (a) Has submitted to the department a certified copy of the disposition of the charge to which the petition to seal pertains.
      (b) Remits a $75 processing fee to the department for placement in the Department of Law Enforcement Operating Trust Fund, unless such fee is waived by the executive director.
      (c) Has never, prior to the date on which the application for a certificate of eligibility is filed, been adjudicated guilty of a criminal offense or comparable ordinance violation, or been adjudicated delinquent for committing any felony or a misdemeanor specified in s. 943.051(3)(b).
      (d) Has not been adjudicated guilty of or adjudicated delinquent for committing any of the acts stemming from the arrest or alleged criminal activity to which the petition to seal pertains.
      (e) Has never secured a prior sealing or expunction of a criminal history record under this section, s. 943.0585, former s. 893.14, former s. 901.33, or former s. 943.058.
      (f) Is no longer under court supervision applicable to the disposition of the arrest or alleged criminal activity to which the petition to seal pertains.

      Commentary on Sub-subsection 2

      This is the section that spells out what is required to obtain a certificate of eligibility. As the first section dictated, a certificate of eligibility is required before any petition to seal a record is considered. The certificate of eligibility is currently obtained from the FDLE, but the legislature could change that at a later date.
      The FDLE is tasked with setting up their own procedures for people to follow in order to apply and be issued a certificate of eligibility for sealing. Every certificate is valid for 12 months from the date stamped by the FDLE once issued. If the certificate expires, a new one has to be applied for and obtained. The law in effect at the time of the new application will apply, not the one that was in effect at the time the expired certificate was issued. A certificate of eligibility to sealed a record is issued if the outlined requirements are met.
      First, a person needs to submit a certified copy of the disposition for the charges to be sealed.
      Second, a person needs to send a $75 processing fee, unless the executive director of the FDLE waives the fee.
      Third, a person needs to be able to prove that they have never been found guilty of any criminal offense or comparable ordinance violation. They also need to be able to prove that they have never been adjudicated delinquent for committing any felony or misdemeanor related to criminal record management.
      Fourth, a person needs to state under oath that they were not adjudicated guilty of the charges they want to seal.
      Fifth, they need to state they never had a prior sealing or expunging of any other case.
      Sixth, the person cannot be under any sort of court supervision.

      943.059(3), Florida Statutes

      Processing of a Petition or Order to Seal. (a) In judicial proceedings under this section, a copy of the completed petition to seal shall be served upon the appropriate state attorney or the statewide prosecutor and upon the arresting agency; however, it is not necessary to make any agency other than the state a party. The appropriate state attorney or the statewide prosecutor and the arresting agency may respond to the court regarding the completed petition to seal.
      (b) If relief is granted by the court, the clerk of the court shall certify copies of the order to the appropriate state attorney or the statewide prosecutor and to the arresting agency. The arresting agency is responsible for forwarding the order to any other agency to which the arresting agency disseminated the criminal history record information to which the order pertains. The department shall forward the order to seal to the Federal Bureau of Investigation. The clerk of the court shall certify a copy of the order to any other agency which the records of the court reflect has received the criminal history record from the court.
      (c) For an order to seal entered by a court prior to July 1, 1992, the department shall notify the appropriate state attorney or statewide prosecutor of any order to seal which is contrary to law because the person who is the subject of the record has previously been convicted of a crime or comparable ordinance violation or has had a prior criminal history record sealed or expunged. Upon receipt of such notice, the appropriate state attorney or statewide prosecutor shall take action, within 60 days, to correct the record and petition the court to void the order to seal. The department shall seal the record until such time as the order is voided by the court.
      (d) On or after July 1, 1992, the department or any other criminal justice agency is not required to act on an order to seal entered by a court when such order does not comply with the requirements of this section. Upon receipt of such an order, the department must notify the issuing court, the appropriate state attorney or statewide prosecutor, the petitioner or the petitioner’s attorney, and the arresting agency of the reason for noncompliance. The appropriate state attorney or statewide prosecutor shall take action within 60 days to correct the record and petition the court to void the order. No cause of action, including contempt of court, shall arise against any criminal justice agency for failure to comply with an order to seal when the petitioner for such order failed to obtain the certificate of eligibility as required by this section or when such order does not comply with the requirements of this section.
      (e) An order sealing a criminal history record pursuant to this section does not require that such record be surrendered to the court, and such record shall continue to be maintained by the department and other criminal justice agencies.

      Commentary on Sub-subsection 3

      This section outlines the procedure to process a petition or order to seal a record. When the process is started, a copy of the completed petition will be served on the prosecutor in the county where the case was filed as well as the arresting agency. If other agencies were involved, such as a case where a person is arrested in one county and extradited to another, all those agencies will be served as well. However, it is not necessary to list anyone as an opposing party other than the state. If a prosecutor or arresting agency wants to, they can file a response to the petition.
      In the event a court orders a record seal, it shall send certified copies of the order to the prosecutor and arresting agency. The arresting agency is responsible to send it to any other arresting agency involved. The court will also send a certified copy to the FBI and any other agency or department that has records from the court.
      For any orders entered before July 1, 1992, the department is responsible to notify the prosecutor of an order to seal that is contrary to the law because the person was previously convicted or had a prior record sealed or expunged. Once the prosecutor receives that information, the prosecutor is responsible to take action within 60 days to fix that record and void the order.
      For any orders entered on or after July 1, 1992, the departments or agencies that receive an order to seal that does not comply with the requirements of this section can simply ignore the order. They must, however, notify the prosecutor, the petitioner or petitioner's attorney, and the arresting agency the reason for the non-compliance. The prosecutor of the case should then take action within 60 days in order to correct the record and void the order. Any agency or department that fails to act on an order to expunge when the petitioner failed to obtain a certificate of eligibility cannot be held liable for taking such an action.

      943.059(4), Florida Statutes

      Effect of Criminal History Record Sealing. A criminal history record of a minor or an adult which is ordered sealed by a court pursuant to this section is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and is available only to the person who is the subject of the record, to the subject’s attorney, to criminal justice agencies for their respective criminal justice purposes, which include conducting a criminal history background check for approval of firearms purchases or transfers as authorized by state or federal law, to judges in the state courts system for the purpose of assisting them in their case-related decisionmaking responsibilities, as set forth in s. 943.053(5), or to those entities set forth in subparagraphs (a)1., 4., 5., 6., 8., 9., and 10. for their respective licensing, access authorization, and employment purposes.
      (a) The subject of a criminal history record sealed under this section or under other provisions of law, including former s. 893.14, former s. 901.33, and former s. 943.058, may lawfully deny or fail to acknowledge the arrests covered by the sealed record, except when the subject of the record:
      1. Is a candidate for employment with a criminal justice agency;
      2. Is a defendant in a criminal prosecution;
      3. Concurrently or subsequently petitions for relief under this section, s. 943.0583, or s. 943.0585;
      4. Is a candidate for admission to The Florida Bar;
      5. Is seeking to be employed or licensed by or to contract with the Department of Children and Families, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration, the Agency for Persons with Disabilities, the Department of Health, the Department of Elderly Affairs, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the disabled, or the elderly;
      6. Is seeking to be employed or licensed by the Department of Education, a district school board, a university laboratory school, a charter school, a private or parochial school, or a local governmental entity that licenses child care facilities;
      7. Is attempting to purchase a firearm from a licensed importer, licensed manufacturer, or licensed dealer and is subject to a criminal history check under state or federal law;
      8. Is seeking to be licensed by the Division of Insurance Agent and Agency Services within the Department of Financial Services;
      9. Is seeking to be appointed as a guardian pursuant to s. 744.3125; or
      10. Is seeking to be licensed by the Bureau of License Issuance of the Division of Licensing within the Department of Agriculture and Consumer Services to carry a concealed weapon or concealed firearm. This subparagraph applies only in the determination of an applicant’s eligibility under s. 790.06.
      (b) Subject to the exceptions in paragraph (a), a person who has been granted a sealing under this section, former s. 893.14, former s. 901.33, or former s. 943.058 may not be held under any provision of law of this state to commit perjury or to be otherwise liable for giving a false statement by reason of such person’s failure to recite or acknowledge a sealed criminal history record.
      (c) Information relating to the existence of a sealed criminal record provided in accordance with the provisions of paragraph (a) is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution, except that the department shall disclose the sealed criminal history record to the entities set forth in subparagraphs (a)1., 4., 5., 6., 8., 9., and 10. for their respective licensing, access authorization, and employment purposes. An employee of an entity set forth in subparagraph (a)1., subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., subparagraph (a)8., subparagraph (a)9., or subparagraph (a)10. may not disclose information relating to the existence of a sealed criminal history record of a person seeking employment, access authorization, or licensure with such entity or contractor, except to the person to whom the criminal history record relates or to persons having direct responsibility for employment, access authorization, or licensure decisions. A person who violates the provisions of this paragraph commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

      Commentary on Sub-subsection 4

      This section outlines what is supposed to happen when someone successfully petitions to seal their record and receives an order granting the sealing. Any records must be made confidential and exempt from disclosure laws. They will not be available to anyone except for those with a court order.
      Once a person has had their record sealed, they can legally deny having ever been arrested, unless they are a candidate for employment with a criminal justice agency; a defendant in a criminal prosecution; petitioning to seal or expunge a future record; applying for admission to the Florida Bar; seeking to be employed or licensed to work with the Department of Children and Families, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration, the Agency for Persons with Disabilities, the Department of Health, the Department of Elderly Affairs, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the disabled, or the elderly; seeking to be employed or licensed by the Department of Education or any school; seeking to be licensed by the Division of Insurance Agent and Agency Services within the Department of Financial Services; or attempting to become a guardian in a domestic relationship. Except for those cases listed above, a person cannot be held liable for perjury or any other form of giving a false statement when they deny an arrest.
      The records that are sealed will remain confidential without a court order. A violation of this provision will result in a misdemeanor.

      943.059(5), Florida Statutes

      Statutory references. Any reference to any other chapter, section, or subdivision of the Florida Statutes in this section constitutes a general reference under the doctrine of incorporation by reference.

      Commentary on Sub-subsection 5

      The statutes referenced by this section are done under the doctrine of incorporation by reference, so just mentioning them is enough to make it as if the entire text is included in this section.

      History

      Legislative history. s. 4, ch. 92-73; s. 44, ch. 93-39; s. 3, ch. 94-127; s. 20, ch. 94-154; s. 96, ch. 94-209; s. 4, ch. 95-427; s. 53, ch. 96-169; s. 8, ch. 96-402; s. 444, ch. 96-406; s. 1848, ch. 97-102; s. 58, ch. 98-280; s. 116, ch. 99-3; s. 10, ch. 99-188; s. 5, ch. 99-300; s. 17, ch. 99-304; s. 3, ch. 2000-246; s. 28, ch. 2000-320; s. 5, ch. 2001-127; s. 1, ch. 2002-212; ss. 9, 98, ch. 2004-267; s. 2, ch. 2004-295; s. 23, ch. 2005-128; s. 119, ch. 2006-120; s. 11, ch. 2006-176; s. 28, ch. 2006-195; s. 110, ch. 2006-197; s. 6, ch. 2008-249; s. 9, ch. 2009-171; s. 8, ch. 2010-31; s. 18, ch. 2012-73; s. 19, ch. 2012-215; s. 5, ch. 2013-98; s. 26, ch. 2013-116; s. 170, ch. 2014-17; s. 36, ch. 2014-123; s. 7, ch. 2014-124; s. 19, ch. 2014-147; s. 28, ch. 2014-160.

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